Andrew Kiehne v AJC Portables Pty Ltd

[2020] FWC 5188

[2020] FWC 5188

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Kiehne
v
AJC Portables Pty Ltd
(U2019/12387)

DEPUTY PRESIDENT DEAN SYDNEY, 28 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] Mr Andrew Kiehne made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009. The Respondent to the application, AJC Portables Pty Ltd, objected to the application on the ground that the dismissal was a case of genuine redundancy.

[2] There has been a considerable delay in progressing this matter as a result of Mr Kiehne’s failure to attend scheduled listings before another member of the Commission. In particular, Mr Kiehne failed to attend a hearing scheduled on 2 March 2020 and failed to attend the subsequent hearing scheduled for 28 April 2020.

[3] The application was allocated to me in early August 2020, and on 5 August 2020 correspondence was sent to Mr Kiehne outlining the numerous listings that had been scheduled in an attempt to deal with his application, and concluded with the following:

“The Deputy President is of the view that you have not pursued your claim within a reasonable period of time and have on many occasions disregarded the directions of the Commission without reasonable excuse. Further, your non-attendance at two scheduled hearings has wasted the Commission’s time. You are required to provide a compelling reason, in the form of a written submission, as to why your application should not now be dismissed, by no later than 12 noon on Friday 7 August 2020. If no submission is received, your application will be dismissed without further notice to you.

[4] In response, Mr Kiehne pleaded to have his application relisted for hearing, apologised for his non-atttendance, and assured me that he genuinely wished to pursue his application. As a result, the application was listed for hearing at 10am today.

[5] The Commission made multiple attempts, by way of telephone and SMS, to contact Mr Kiehne over the past week to ensure he would attend the hearing today, however no response was received from him.

[6] Neither party attended today’s hearing. No explanation has subsequently been provided by Mr Kiehne to the Commission as to his non-attendance.

[7] Section 587 of the Act provides the Commission with a broad discretion to dismiss an application. It reads:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[8] Given Mr Kiehne’s continuous non-attendance at the hearing and his failure to make contact with the Commission, I am satisfied that he has not demonstrated an intention to pursue his unfair dismissal application. Accordingly, I have decided to dismiss the application for want of prosecution pursuant to s.587 of the Act.

[9] An order dismissing the application will be issued with this decision.

DEPUTY PRESIDENT

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